Behandling af ulovligt kapitalejerlån: Herunder erklæringsmæssige overvejelser

Johansen Julie Lea & Kold Maiken Trier

Student thesis: Master thesis

Abstract

In September 2012, Folketinget, the Danish Parliament, passed an amendment of the Danish Tax Assessment Act concerning taxation of loans from a company to a shareholder. The reason for this amendment of the Act was an increasing tendency for shareholders to use a loan as an alternative to salary or dividend, with the purpose to avoid compulsory taxation. Therefore, Folketinget, the Danish Parliament, felt compelled to incorporate a new provision in the Danish Tax Assessment Act: Section 16E, which applies to loans that have been granted as per 14 August 2012 or later. As a result of the introduction and adoption of the law, there has been increased focus on this issue after 18 September 2012, the date of adoption. While the Act in a tax law context has the result that the loan must be treated in accordance with the general tax rules on non-refundable withdrawals and must be taxed as either salary or dividend, it will in the company law context involve no changes at all. The same rules still apply on payment of interest and repayment. The amendment has resulted in extra work for auditors and other advisers. Questions on repayments of illegal shareholders’ loans have been raised, as well as questions on dividend tax or withholding tax payments. This may lead to further problems, if the shareholder is unable to pay the tax, and how this issue could be treated and carried out in practice. In addition, it has been demonstrated that the tax treatment in relation to company law and tax law is not always consistent, which in itself can cause confusion. The purpose of the thesis is to give a brief description of the company law and the tax law. We will clarify the differences between the laws by comparing them. We will review examples of illegal shareholders’ loans, and we will try to show improvements by an analysis and in our conclusion explain how this is done both theoretically and in practice. Moreover, we will describe the implications for the auditor’s work in connection with the audit of the annual report and the independent auditor’s report, as a new survey from FSR - Danish Auditors, Denmark’s trade organization of auditing, accounting, tax and corporate finance - shows that companies opting out of audits or extended review is the major single reason for the decline in additional notes on illegal shareholders’ loans in the independent auditor’s report in the accounts from 2013 to 2014. Side 6 af 115 The survey prepared by FSR further concluded that 6,529 audited companies had additional notes on illegal loans in the independent auditor’s report of the 2014 accounts. This corresponds to 4.3% of the audited companies which received an additional note on illegal loans. By comparison, 5.9% showed illegal loans in the 2013 accounts. The number of accounts in which the auditor has added notes on illegal loans in his report, has dropped by 3,456 in the past year from 9,985 to 6,529. The decline of 3,456 companies with additional notes on illegal loans consist of opting out of audit by 1,523 companies, net completed loans by 1,225 companies and insolvencies or non-reported accounts by 708 companies. The 2014 accounts, either audited or provided with an extended review, are estimated to have illegal loans for a total amount of DKK 1.4bn. This, and despite the fact that the new tax rules from the autumn of 2012 aimed to put an end to illegal shareholders’ loans, 2,382 out of 6,529 illegal loans in the 2014 accounts were new illegal loans. FSR estimates that among the 72,785 companies that have not been audited or with an extended review of the 2014 accounts, 3,139 companies might have been provided with an additional note on illegal loans, that are not necessarily obvious because of the opting out of audit or extended review. The subject is still interesting and relevant to shareholders, auditors and society, and we therefore hope to give a clear presentation of the subject in our thesis.

EducationsMSc in Auditing, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2015
Number of pages115